SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
Mueller Industries, Inc.
------------------------
(Name of applicant)
8285 Tournament Drive, Suite 150
Memphis, TN 38125
----------------------------------------
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE
TO BE QUALIFIED
TITLE OF CLASS AMOUNT
6% Subordinated Debentures due 2014 $320,000,000 maximum aggregate
principal amount
Approximate date of proposed public offering: November 15, 2004
Name and address of agent for service: With a Copy to:
William H. Hensley Neil Novikoff
Vice President, General Counsel and Secretary Willkie Farr & Gallagher LLP
Mueller Industries, Inc. 787 Seventh Avenue
8285 Tournament Drive, Suite 150 New York, NY 10019
Memphis, TN 38125 (212) 728-8000
(901) 753-3200
The obligor hereby amends this application for qualification on such date
or dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this amendment, or (ii) such date as the Securities and Exchange
Commission, acting pursuant to section 307(c) of the Trust Indenture Act of
1939, may determine upon the written request of the obligor.
GENERAL
1. General information. Furnish the following as to the applicant:
(a) Form of organization. Mueller Industries, Inc. (the "Company") is a
corporation.
(b) State or other sovereign power under the laws of which organized. The
Company is organized under the laws of the State of Delaware.
2. Securities Act exemption applicable. State briefly the facts relied upon by
the applicant as a basis for the claim that registration of the indenture
securities under the Securities Act of 1933 is not required.
On September 2, 2004, the Company announced that it had authorized a
dividend of (1) $6.50 in cash and (2) $8.50 in principal amount of the Company's
6% Subordinated Debentures due 2014 (the "Debentures"), per share of the
Company's common stock, par value $0.01 per share ("Common Stock"), payable to
the holders of record of the Common Stock at the close of business on a record
date to be determined, subject to the satisfaction of certain conditions and the
occurrence of certain events. The Debentures will be issued pursuant to an
Indenture to be dated as of [_______], 2004 (the "Indenture"), between the
Company and [____________], as trustee (the "Trustee").
The Company believes that the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "Securities Act"), do not apply to the
Company's distribution of the Debentures to its stockholders as a dividend since
there will be no "sale" of the Debentures. Section 2(3) of the Securities Act
provides that a sale "...shall include every contract of sale or disposition of
a security or interest in a security, for value." The Company will be
distributing the Debentures to its stockholders on a pro rata basis and no
consideration will be given by its stockholders in exchange for the receipt of a
Debenture.
AFFILIATIONS
3. Affiliates. Furnish a list or diagram of all affiliates of the applicant
and indicate the respective percentages of voting securities or other bases
of control.
(a) Each of the directors and executive officers of the Company may be
deemed to be an affiliate of the Company by virtue of his or her position. The
following table sets forth, as of August 31, 2004, the number and percentage of
shares of Common Stock beneficially owned by each of the Company's directors and
executive officers (calculated based on 36,003,353 shares outstanding on August
31, 2004).
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Common Stock Beneficially
Owned as of Percent of
Name Title August 31, 2004 Class
---- ----- -------------------------- ----------
Gennaro J. Fulvio (1) Director 6,000 *
Gary S. Gladstein (2) Director 23,400 *
Terry Hermanson (3) Director 5,000 *
Robert B. Hodes (4) Director 29,500 *
Harvey L. Karp Chairman of the Board 1,041,886 2.89%
William D. O'Hagan (5) Chief Executive Officer; 908,136 2.52%
President; Director
Michael O. Fifer (6) Executive Vice President 4,000 *
Roy C. Harris (7) Chief Information Officer 68,116 *
William H. Hensley (8) General Counsel; Vice President; 3,908 *
Secretary
Kent A. McKee (9) Chief Financial Officer; Vice 96,610 *
President
Lee R. Nyman (10) Senior Vice President - 68,610 *
Manufacturing/Engineering
James H. Rourke (11) President-Industrial Products 120,133 *
Division; General Manager-Rod
----------------------
* Less than 1%
(1) The number of shares of Common Stock beneficially owned by Mr. Fulvio
includes 6,000 shares of Common Stock which are subject to currently
exercisable stock options.
(2) The number of shares of Common Stock beneficially owned by Mr. Gladstein
includes 8,000 shares of Common Stock which are subject to currently
exercisable stock options.
(3) The number of shares of Common Stock beneficially owned by Mr. Hermanson
includes 4,000 shares of Common Stock which are subject to currently
exercisable stock options.
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(4) The number of shares of Common Stock beneficially owned by Mr. Hodes
includes (i) 2,200 shares of Common Stock owned by Mr. Hodes' children (as
to which Mr. Hodes disclaims beneficial ownership) and (ii) 10,000 shares
of Common Stock which are subject to currently exercisable stock options.
(5) The number of shares of Common Stock beneficially owned by Mr. O'Hagan
includes (i) 660,000 shares of Common Stock which are subject to currently
exercisable stock options, (ii) 28,136 shares of Common Stock owned by Mr.
O'Hagan's spouse, (iii) 191,162 shares of Common Stock held in a property
trust, with Mr. O'Hagan's daughter as trustee, and (iv) 28,838 shares of
Common Stock owned by a family partnership of which Mr. O'Hagan is a
general partner and in which Mr. O'Hagan or his spouse hold a 99% interest.
Mr. O'Hagan disclaims beneficial ownership of the 28,136 shares of Common
Stock owned by his spouse and of the 191,162 shares held in trust.
(6) The number of shares of Common Stock beneficially owned by Mr. Fifer
includes 4,000 shares of Common Stock which are subject to currently
exercisable stock options.
(7) The number of shares of Common Stock beneficially owned by Mr. Harris
includes 56,500 shares of Common Stock which are subject to currently
exercisable stock options.
(8) The number of shares of Common Stock beneficially owned by Mr. Hensley
includes 1,470 shares of Common Stock owned by one of Mr. Hensley's
children.
(9) The number of shares of Common Stock beneficially owned by Mr. McKee
includes 51,000 shares of Common Stock which are subject to currently
exercisable stock options.
(10) The number of shares of Common Stock beneficially owned by Mr. Nyman
includes 52,600 shares of Common Stock which are subject to currently
exercisable stock options.
(11) The number of shares of Common Stock beneficially owned by Mr. Rourke
includes 74,000 shares of Common Stock which are subject to currently
exercisable stock options.
(b) A list of the Company's affiliates that are subsidiaries of the Company
is set forth on Annex I.
MANAGEMENT AND CONTROL
4. Directors and executive officers. List the names and complete mailing
addresses of all directors and executive officers of the applicant and all
persons chosen to become directors or executive officers. Indicate all
offices with the applicant held or to be held by each person named.
The names and offices of all current directors and executive officers of
the Company are set forth in the table in Section 3(a) above. The address for
each director and executive officer of the Company is c/o Mueller Industries,
Inc., 8285 Tournament Drive, Suite 150, Memphis, TN 38125.
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5. Principal owners of voting securities. Furnish the following information as
to each person owning ten percent or more of the voting securities of the
applicant.
To the Company's knowledge, as of August 31, 2004, no person owned more
than ten percent of the Company's voting securities.
UNDERWRITERS
------------
6. Underwriters. Give the name and complete mailing address of (a) each person
who, within three years prior to the date of filing the application, acted
as an underwriter of any securities of the obligor which were outstanding
on the date of filing the application, and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each person
specified in (a), give the title of each class of securities underwritten.
(a) No person has acted as underwriter for the Company's securities in the
last three years.
(b) Not applicable.
CAPITAL SECURITIES
------------------
7. Capitalization.
(a) Furnish the following information as to each authorized class of
securities of the applicant.
As of August 31, 2004
---------------------
Amount Amount
Title of Class Authorized Outstanding
-------------- ---------- -----------
Common Stock, par value $0.01 100,000,000 36,003,353
per share
Preferred Stock, par value 4,985,000 0
$1.00 per share
Series A Junior participating 15,000 0
Preferred Stock, par value
$1.00 per share
(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
Common Stock. The holders of Common Stock are entitled to one vote per
share for each share held of record on all matters submitted to a vote of
stockholders, including the election of directors. There is no cumulative
voting.
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Preferred Stock. The Board of Directors of the Company is authorized to
provide for the issuance of shares of Preferred Stock in one or more series,
with such voting powers, full or limited, as may be determined by the Board of
Directors; provided that the Company may not issue non-voting equity securities.
Series A Junior Participating Preferred Stock. Each share of the Company's
Series A Junior Participating Preferred Stock entitles the holder thereof to
1,000 votes on all matters submitted to a vote of the stockholders of the
Company, as adjusted for stock splits, stock dividends, combinations and the
like. The holders of shares of Series A Junior Participating Preferred Stock and
the holders of shares of Common Stock vote together as one class on all matters
submitted to a vote of stockholders of the Company, except as set forth below or
as required by law.
If at any time dividends on any Series A Junior Participating Preferred
Stock shall be in arrears in an amount equal to six quarterly dividends thereon,
the occurrence of such contingency shall mark the beginning of a period (a
"default period") which shall extend until such time when all accrued and unpaid
dividends for all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared and paid or set apart
for payment. During each default period, all holders of Preferred Stock
(including holders of the Series A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six quarterly dividends thereon,
voting as a class, irrespective of series, shall have the right to elect two
directors of the Company. During any default period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting of stockholders, and thereafter at annual
meetings of stockholders, provided that neither such voting right nor the right
of the holders of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of directors shall be exercised unless the
holders of ten percent 10% in number of shares of Preferred Stock outstanding
shall be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Preferred Stock
of such voting right. At any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two
directors or, if such right is exercised at an annual meeting, to elect two
directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect directors in any
default period and during the continuance of such period, the number of
directors shall not be increased or decreased except by vote of the holders of
Preferred Stock or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Junior Participating Preferred Stock.
Unless the holders of Preferred Stock shall, during an existing default
period, have previously exercised their right to elect directors, the Board of
Directors may order, or any stockholder or stockholders owning in the aggregate
not less than ten percent of the total number of shares of Preferred Stock
outstanding, irrespective of series, may request, the calling of a special
meeting of the holders of Preferred Stock, which meeting shall thereupon be
called by the
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President, a Vice-President or the Secretary of the Company. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote shall be given to each holder of record of Preferred Stock by
mailing a copy of such notice to him at his last address as the same appears on
the books of the Company. Such meeting is required to be called for a time not
earlier than twenty days and not later than sixty days after such order or
request or in default of the calling of such meeting within sixty days after
such order or request, such meeting may be called on similar notice by any
stockholder or stockholders owning in the aggregate not less than ten percent of
the total number of shares of Preferred Stock outstanding. No such special
meeting shall be called during the period within sixty days immediately
preceding the date fixed for the next annual meeting of the stockholders.
In any default period, the holders of Common Stock, and other classes of
stock of the Company if applicable, shall continue to be entitled to elect the
whole number of directors until the holders of Preferred Stock shall have
exercised their right to elect two directors voting as a class, after the
exercise of which right (x) the directors so elected by the holders of Preferred
Stock shall continue in office until their successors shall have been elected by
such holders or until the expiration of the default period, and (y) any vacancy
in the Board of Directors may be filled by vote of a majority of the remaining
directors theretofore elected by the holders of the class of stock which elected
the director whose office shall have become vacant.
Immediately upon the expiration of a default period, (x) the right of the
holders of Preferred Stock as a class to elect directors shall cease, (y) the
term of any directors elected by the holders of Preferred Stock as a class shall
terminate, and (z) the number of directors shall be such number as may be
provided for in the certificate of incorporation or by-laws irrespective of any
increase made pursuant to the special voting rights of the holders of Preferred
Stock as described above. Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding sentence may be filled by
a majority of the remaining directors.
INDENTURE SECURITIES
--------------------
8. Analysis of indenture provisions. Insert at this point the analysis of
indenture provisions required under section 305(a)(2) of the Trust
Indenture Act of 1939 (the "1939 Act").
The Debentures will be issued under an indenture to be dated as of
[________], 2004 (the "Indenture") and entered into by the Company and
[____________], as Trustee (the "Trustee"). The following analysis is not a
complete description of the Indenture provisions discussed and is qualified in
its entirety by reference to the terms of the Indenture, a form of which is
attached as Exhibit T3C hereto and incorporated by reference herein. The Company
has not entered into the Indenture as of the date of this filing, and the terms
of the Indenture are subject to change prior to its execution. Capitalized terms
used below but not defined have the meanings assigned to them in the Indenture.
(a) Events of Default. The term "Event of Default" with respect to the
Debentures includes any of the following events:
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(i) default for 30 days in the payment of interest on the
Debentures (whether or not prohibited by the subordination
provisions of the Indenture);
(ii) default in payment of the principal of the Debentures when due
(whether or not prohibited by the subordination provisions of
the Indenture);
(iii) failure by the Company for 60 days after notice from the
Trustee or the holders of at least 25% of the outstanding
aggregate principal amount of the Debentures to comply with any
of its other agreements in the Indenture or the Debentures; or
(iv) certain events of bankruptcy or insolvency relating to the
Company as specified in the Indenture.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default that is continuing and known to the Trustee, give all
holders of Debentures notice of such default, provided, that, except in the case
of default in payment of principal of or interest on the Debentures, the Trustee
may withhold notice if it in good faith determines that the withholding of such
notice is in the interest of the holders of the Debentures.
If any Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the Debentures then outstanding
may declare all the Debentures to be due and payable immediately. If the Event
of Default is an event of bankruptcy as described in (iv) above, all outstanding
Debentures will become due and payable without further action or notice.
A declaration of acceleration may be rescinded by the holders of a majority
in aggregate principal amount of then outstanding Debentures if (a) the Company
has paid or deposited with the Trustee cash sufficient to pay all principal and
accrued interest on the Debentures and all fees and expenses of the Trustee, and
(b) all Events of Default, other than the non-payment of the principal and
interest on the Debentures that have become due solely by such declaration of
acceleration, have been cured or waived.
(b) Authentication and Delivery of the Debentures; Application of Proceeds.
The Debentures to be issued under the Indenture, in aggregate principal
amount of up to $320 million, may from time to time be executed on behalf of the
Company by its proper officers and delivered to the Trustee for authentication
and delivery in accordance with the Company's order and the Indenture. Each
Debenture shall be dated the date of its authentication, and no Debenture shall
be valid unless authenticated by manual signature of the Trustee, and such
signature shall be conclusive evidence that such Debenture has been duly
authenticated under the Indenture. The Debentures shall be in denominations of
$1,000 and integral multiples thereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Debentures. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Debentures whenever the Trustee may do so.
Each reference in the Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent
8
has the same rights as an agent to deal with the Company, any affiliate of the
Company, or any of their respective subsidiaries.
There will be no proceeds (and therefore no application of such proceeds)
from the issuance of the Debentures because the Debentures will be issued as a
dividend to the holders of the Company's Common Stock.
(c) Satisfaction and Discharge of the Indenture.
The Company may terminate its obligations under the Indenture when (i) all
outstanding Debentures that have been authenticated and issued have been
delivered (other than destroyed, lost or stolen Debentures that have been
replaced or paid) to the Trustee for cancellation, (ii) the Company has paid all
sums payable by the Company under the Indenture and (iii) the Company has
delivered to the Trustee an officers' certificate and an opinion of counsel,
each stating that the foregoing conditions precedent have been complied with
(e) Evidence of Compliance with Conditions and Covenants.
So long as any of the Debentures are outstanding, the Indenture
requires that the Company will deliver to the Trustee:
(i) within 90 days after the end of each fiscal year, a certificate signed
by two officers of the Company, one of whom must be the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, complying with Section 314(a)(4) of the Trust Indenture Act of 1939
and stating that a review of the activities of the Company during the preceding
fiscal year has been made under the supervision of the signing officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under the Indenture, and further stating, as to each
officer signing such certificate, whether or not the signer knows of any failure
by the Company to comply with any conditions or covenants in the Indenture
(determined without regard to any period of grace or requirement of notice) and,
if such signer does know of such a failure to comply, the certificate shall
describe such failure with particularity. The officers' certificate shall also
notify the Trustee should the relevant fiscal year end on any date other than
the current fiscal year end date; and
(ii) promptly upon becoming aware of any Default, Event of Default or fact
which would prohibit the making of any payment to or by the Trustee in respect
of the Debentures, an officers' certificate specifying such Default, Event of
Default or fact and what action the Company is taking or proposes to take with
respect thereto. The Trustee shall not be deemed to have knowledge of any
Default, any Event of Default or any such fact unless one of its Trust Officers
receives notice thereof from the Company or any of the holders of the
Debentures.
9. Other obligors. Give the name and complete mailing address of any person,
other than the applicant, who is an obligor upon the indenture securities.
None.
Contents of application for qualification. This application for
qualification comprises:
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(a) Pages numbered 1 to 10, consecutively (and Annex I and an Exhibit
Index).
(b) The statement of eligibility and qualification of each trustee under the
indenture to be qualified.
The statement of eligibility and qualification on Form T-1 of the
Trustee will be filed subsequently with the Securities and Exchange
Commission.
(c) The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of each trustee:
Exhibit Number Description
-------------- -----------
Exhibit T3A(1) Certificate of Incorporation of the Company, as amended.
Exhibit T3B(1) Bylaws of the Company, as amended.
Exhibit T3C Form of Indenture to be qualified.
Exhibit T3F Cross-reference sheet showing the location in the
Indenture of the provisions inserted therein pursuant to
Sections 310 through 318(a), inclusive of the Act.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Mueller Industries, Inc., a corporation organized and existing under
the laws of the State of Delaware, has duly caused this application to be signed
on its behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the city of Memphis, and State of
Tennessee, on the 3rd day of September, 2004.
MUELLER INDUSTRIES, INC.
By: /s/ Kent A. McKee
------------------------------
Name: Kent A. McKee
Title: Vice President and Chief
Financial Officer
Attest: /s/ Richard W. Corman
---------------------------
Name: Richard W. Corman
Title: Controller
ANNEX I
SUBSIDIARIES
Each entity listed below is a wholly owned subsidiary of the Company,
unless otherwise indicated. The names of indirectly owned subsidiaries are
indented and listed under their direct-parent entity, and are wholly owned by
their direct-parent entity unless otherwise indicated. All percentages listed
refer to the voting securities of the respective entity unless otherwise
indicated.
State or Country of
Subsidiary Incorporation
---------- -------------------
Mueller Brass Co. (Assumed name: Mueller Brass Products) Michigan
Mueller Industrial Realty Co. Michigan
Itawamba Industrial Gas Company, Inc. Mississippi
Streamline Copper & Brass Ltd. Canada
Mueller Plastics Holding Company, Inc. Ohio
Mueller Plastics Corporation, Inc. Delaware
MPC Foundry, Inc. Delaware
MPC Machine Shop, Inc. Delaware
Mueller Brass Forging Company, Inc. Delaware
Mueller Copper Fittings Company, Inc. Delaware
Mueller Fittings Company, Inc. Michigan
Mueller Copper Tube Company, Inc. Delaware
Mueller East, Inc. Delaware
Mueller Formed Tube Company, Inc. Delaware
Mueller Impacts Company, Inc. Delaware
Mueller Line Set Inc. Delaware
Mueller Press Company, Inc. Mississippi
Mueller Refrigeration Products Company, Inc. Delaware
Mueller Refrigeration Company, Inc. Michigan
Mueller LBHC, Inc. Delaware
Lincoln Brass Works, Inc. (Assumed Name: Mueller Gas Michigan
Products)
Overstreet-Hughes, Co., Inc. Tennessee
Mueller Refrigeration Holding Co., Inc. Delaware
Mueller Streamline Co. Delaware
Precision Tube Company, Inc. Pennsylvania
Mueller Tool and Machine, Inc. Delaware
Mueller Casting Company, Inc. Delaware
Micro Gauge, Inc. Michigan
Microgauge Machining, Inc. Michigan
Propipe Technologies, Inc. (Assumed name: Mueller Gas Products) Ohio
WTC Holding Company, Inc. Michigan
Mueller Europe, Ltd. United Kingdom
Vemco Brasscapri Limited United Kingdom
Brasscapri Limited United Kingdom
Primaflow Limited United Kingdom
DENO Investment Company, Inc. Michigan
Mueller de Mexico S.A. de C.V. (1) Mexico
DENO Holding Company, Inc. Michigan
DENO Acquisition France
Mueller Europe, S.A. (2) France
B & K Industries, Inc. Illinois
Mueller Copper Tube Products, Inc. Delaware
Mueller Streamline FSC Ltd. Virgin Islands
Arava Natural Resources Company, Inc. Delaware
United States Fuel Company Nevada
King Coal Company Utah
Canco Oil & Gas Ltd. Alberta, Canada
Aegis Oil & Gas Leasing Ltd. Alberta, Canada
Bayard Mining Corporation Delaware
Washington Mining Company Maine
Amwest Exploration Company Delaware
USSRAM Exploration Company Maine
Richmond-Eureka Mining Company (81%) Maine
Ruby Hill Mining Company (75%) Nevada
White Knob Mining Company Idaho
Arava Exploration Company Colorado
Summit Systems, Inc. Delaware
Kennet Company Limited Bermuda
Mining Remedial Recover Company Delaware
Carpentertown Coal & Coke Company Pennsylvania
USS Lead Refinery, Inc. Maine
Leon Water Enterprises, Inc. (50%) Texas
Macomber Construction Company Ohio
Macomber Incorporated Ohio
Macomber Building Land Corporation Delaware
DENO Investment Company II, Inc. Michigan
MII Financial Corporation Michigan
* All subsidiaries are 100% owned, except as shown.
(1) Owned by DENO Investment Company, Inc. (99.8%) and Mueller Streamline Co.
(.2%).
(2) On March 3, 2003, Mueller Europe S.A. filed a petition for liquidation with
the Commercial Court of Provins Province, France and, on March 4, the Court
declared the entity to be in liquidation. Less than 1% owned by
non-affiliated individuals.
EXHIBIT INDEX
EXHIBIT DESCRIPTION
------- -----------
NUMBER
------
Exhibit Certificate of Incorporation of the Company, as
T3A(1) amended.
Exhibit Bylaws of the Company, as amended.
T3B(1)
Exhibit Form of Indenture to be qualified.
T3C
Exhibit Cross-reference sheet showing the location in the
T3F provisions inserted therein pursuant to Sections 310
through 318(a), inclusive of the Act.